The Doctrine of Judicial Review

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Preface

In the preparation of another volume, not yet published, I have encountered a number of questions involving controversies important to the student of American Constitutional History, an extended consideration of which however in those pages I felt to be out place. The following studies present my conclusions with regard to these questions, and the grounds of them. In the principal essay, I have endeavored to present judicial review as the outcome of a view of legislative power which arose in consequence of the astonishing abuse of their powers by the early State legislatures but which was first appreciated for its full worth by the Convention that framed the Constitution of the United States. Incidentally I have, I trust, laid to rest that most inconclusive "explanation" of judicial review which dwells on the idea that a legislative measure contrary to the constitution is not law and never was. The alleged explanation totally ignores the crucial question, which is. Why is it the judicial view of the constitution that legislative measures have to conform to? The article on the Dred Scott Decision treats of the most dramatic episode in the history of judicial review, though one that is by no means the best illustrative of the spirit of the institution. The study entitled "We, the People," approaches the time-honored controversy over Secession and Nullification from what is shown to be, I submit.

vi PREFACE

the point of view of 1787. But the verdict arrived at with reference to the rights of the States in relation to the Constitution is not without import for some present-day issues, as is shown in the paper on Some PossibiHties of Treaty-Making. The paper on the Pelatiah Webster Myth deals with a question of less practical significance, but yet one of real ethical importance. For if history has any function to perform it is that of endeavoring at least to make correct assessment of the motives and services of men.

In the preparation of this little volume I have become the debtor of Professor Evans Holbrook, editor of the Michigan Law Review, for valuable editorial assistance in putting the first study into final shape. My especial thanks are also due to Mr. Walter Cottrell of the Princeton University Library staflf and Mr. B. A. Finney of the University of Michigan Library for numberless courtesies.

I should also take this occasion to point out to the reader that when the word ''constitution'' is capitalized in the following pages it refers to the national Constitution, but that at other times it refers to this or that State constitution or signifies constitution in the generic sense. The distinction becomes at times of some importance.

Edward S. Corwin.

Ypsilanti, Michigan

Sept. II, 1914

Contents

PAGE

I. MARBURY V. MADISON AND THE DOCTRINE

OF JUDICIAL REVIEW i

II

But from Marbury v. Madison we proceed to the question whether, and in what way, the Constitution itself sanctions judicial review. I have already indicated my opinion that no clause was inserted in the Constitution for the specific purpose of bestowing this power on courts, but that the power rests upon certain general principles thought by its f ramers to have been embodied in the Constitution. I shall now endeavor to justify this opinion.

That the members of the Convention of 1787 thought the Constitution secured to courts in the United States the right to pass on the validity of acts of Congress under it cannot be reasonably doubted. Confining ourselves simply to the available evidence that is strictly contemporaneous with the framing and ratifying of the Constitution, as I think it only proper to do, we find the following members of the Convention that framed the Constitution definitely asserting that this would be the case: Gerry and King of Massachusetts, Wilson and Gouverneur Morris of Pennsylvania, Martin of Maryland, Randolph, Madison, and Mason of Virginia, Dickinson of Delaware, Yates and Hamilton of New York, Rutledge and Charles Pinckney of South Carolina, Davie and Wil-

MARBURY V. MADISON ii

liamson of North Carolina, Sherman and Ellsworth of Connecticut.^^ True these are only seventeen names out of a possible fifty-five, but let it be considered whose names they are. They designate fully three-fourths of the leaders of the Convention, four of the five members of the Committee of Detail- which drafted the Constitution,^^ and four of the five members of the Committee of Style which gave the Constitution final form.^^ The entries under these names, in the Index to Farrand's Records occupy fully thirty columns, as compared with fewer than half as many at

Max Farrand, Records of the Federal Convention (Yale Univ. Press, 1913) ; I, 97 (Gerry), 109 (King) ; II, ^i (Wilson), 76 (Martin), 78 (Mason), 299 (Dickinson and Morris), 428 (Rutledge), 248 (Pinckney), zi^ (Williamson), 28 (Sherman, 93 (Madison); III, 220 (Martin, in "Genuine Information"). The Federalist: Nos. 39 and 44 (Madison), No. 78 (Hamilton). Elliot's Debates (Ed. of 1836); II, 1898-9 (Ellsworth), 417 and 454 (Wilson), 336-7 (Hamilton); III, 197, 208, 431 (Randolph), 441 (Mason), 484-S (Madison) ; IV, 165 (Davie). P. L. Ford, Pamphlets on the Constitution, 184 (Dickinson, in "Letters of Fabius"). Ford, Essays on the Constitution, 295 (Yates, writing as "Brutus"). Pinckney later, in 1799, denounced the idea of judicial review, thus: "On no subject am I more convinced than that it is an unsafe and dangerous doctrine in a republic ever to suppose that a judge ought to possess the right of questioning or deciding upon the constitutionality of treaties, laws, or any act of the legislature. It is placing the opinion of an individual, or two, or three, above that of both branches of Congress, a doctrine which is not warranted by the Constitution, and will not, I hope, long have any advocates in this country"; quoted from Wharton's State Trials, 412, by Mr. Horace A. Davis in Am. Polit. Sc. Rev., 551. Madison's later views are considered injra.

""Gorham, Rutledge, Randolph, Ellsworth, and Wilson. The argument is from Professor Beard's Supreme Court, etc.

"Johnson, Hamilton, Morris, Madison, and King.

columns under the names of the remaining members. We have in this Hst, in other words, the names of men who expressed themselves on the subject of judicial review because they also expressed themselves on all other subjects before the Convention. They were the leaders of that body and its articulate members. And against them are to be pitted, in reference to the question under discussion, only Mercer of Maryland, Bedford of Delaware, and Spaight of North Carolina, the record in each of whose cases turns out to be upon inspection of doubtful implication. For while Spaight, for instance, undoubtedly expressed himself, during the period of the Convention, as strongly adverse to the theory of judicial review,^^ yet he later heard the idea expounded both on the floor of the Philadelphia Convention and the North Carolina convention without protest. The words of Bedford which are relied upon in this connection are his declaration that he was "opposed to every check on the legislature." But these words were spoken with reference, not to judicial review, but to the proposition to establish a council of legislative revision.^^ Mercer of Maryland did not sign the Constitution and opposed its adoption. It is by no means impossible that one of the grounds of his opposition was recognition of the fact that the Constitution established judicial review.^® Altogether it seems a warrantable assertion that on no other feature of the Constitution with reference

"See McRee, Life and Correspondence of James Iredell, II, 169-76.

to which there has been any considerable debate is the view of the Convention itself better attested.

Yet it must be admitted that, if we assume that the Convention did not finally incorporate its view in specific provisions of the Constitution, a difficulty that at first seems formidable opposes itself to the thesis that this view was secured by certain general principles thought to be embodied in the Constitution!^ The source of the difficulty I allude to is Article VI, par. 2, of the Constitution. This paragraph first announces the supremacy of the Constitution, the acts of Congress in pursuance thereof, and treaties made under the authority of the United States, as law of the land, and then proceeds to impose a specific mandate upon State judges to enforce this supreme law, anything in the law or constitution of any State to the contrary notwithstanding. The question therefore arises. Why did the Convention, if it believed general principles sufficient to secure judicial review of acts of Congress, deem it necessary to order the State judges to prefer what was described as supreme law of the land to subordinate law? Any doctrine of judicial review must rest in part upon the idea of one law superior to another, and if, to repeat the question just put, the fact of superiority of national law to State law furnished, in the estimation of the Convention, an insufficient security of the former as against the latter, why should not the analogous superiority of the Constitution itself to acts of Congress be similarly insufficient? But the answer to this question is, after all, plain enough : The judges to whom the mandate of Article VI is addressed are State judges, that is, judges of an independent jurisdiction. Their duty to take cognizance of national law at all had therefore to be declared in unmistakable terms. Indeed, once this fact is grasped, it is seen that the mandate in question, instead of opposing difficulty to the thesis I am presenting, furnishes it powerful confirmation. For the significant feature of that mandate now becomes the fact that it is addressed to State judges, who are thus assumed to be the final guardians of both State laws and State constitutions.

What, however, are the clauses usually represented as having been placed in the Constitution for the purpose of giving the Supreme Court the power to pass upon the validity of acts of Congress? One is the "pursuance'' clause of Article VI, par. 2. But obviously this clause, while perhaps making more explicit the fact that Congress' is a limited power, says nothing as to what agency is to say finally what of Congress' acts are, and what are not, "in pursuance of this Constitution." Moreover, the "pursuance" clause does not appear in Article III, which deals with the judicial power of the United States.

A clause more insisted upon, however, in this connection is the clause in this same Article III: "The judicial power of the United States shall extend to all cases arising under this Constitution." No doubt it must be allowed that cases involving the question of constitutionality with reference to acts of Congress are describable as "cases arising under this Constitution." Nevertheless, it must be insisted that the clause just quoted was not placed in the Constitution for the purpose of bringing such cases within the judicial power of the United States, and this for the simple reason that they were already there. As we have just noted, the "pursuance" clause does not appear in Article III. But what this signifies is that the judicial jXDwer of the United States extends to every act of Congress whether made in pursuance of the Constitution or not, that — to quote the words of Chief Justice Taney in Ableman v. Booth — it "covers every legislative act of Congress, whether it be made within the limits of its delegated power or be an assumption of power beyond the grants in the Constitution."^^ Had, therefore, the clause "arising under this Constitution" been inserted to extend the judicial power of the United States to cases involving the constitutionality of acts of Congress, it would be so far forth mere surplusage.

The explanation of the clause must then be sought in a class of cases to which but for it the judicial power of the United States would not extend. Nor, relying upon the guidance of Hamilton in the Federalist is it diflficult to discover such a class of cases. Construing the clause under discussion in Federalist 80, Hamilton explains that it refers to cases arising in consequence of State enactments transgressing prohibitions of the Constitution upon State legislative f>owers, cases which, therefore, but for this clause, would terminate in the State judiciaries. Hamilton's explanation is confirmed by Madison's analysis of Article HI in the Virginia convention-® and by Davie's language in the North Carolina convention.-'**

But a more vital consideration is that the "arising" clause does not, unless we take a certain view of the Constitution and of judicial power under it, confer upon the federal courts the 'power to pass finally upon the validity of even State laws under the Constitution, — finally, that is, as against Congress, which has the power to pass all laws "necessary and proper'* to carry its enumerated powers into effect and whose laws passed by warrant of this power are paramount to all conflicting State laws or constitutions.^®* The purpose of the clause is merely to define the jurisdiction of the federal courts. The "judicial power" of the United States, it says, shall extend to certain classes of "cases." But as to what that power is, what are its intrinsic nature and scope, it says not a word.

Nor is the list of objections yet exhausted to resting the power of the Supreme Court over acts of Congress upon the phrases under discussion. For one thing, it may be asked, if these phrases are necessary to give the federal courts power to pass upon the constitutionality of acts of Congress, what becomes of the similar pretension of State courts with reference to State legislation under the State constitutions, from which these or equivalent phrases are usually absent? Again, it may be asked, how, upon this assumption, is the fact to be explained that most of the advocates of judicial review in the Convention of 1787 had declared their belief that this power would reside in the national courts long before they had heard or thought of these clauses? Finally, it may be asked why, if the framers wanted judicial review and still thought

'"'See particularly Fed. 33 (Lodge's Ed.).

it necessary to provide for it specifically, did they not choose language apt for the purpose, language as explicit and unmistakable as that describing, for example, the veto power of the President? A possible answer would be, of course, that they desired to conceal their intentions at this point, but the fact is, that they proclaimed them and that judicial review was universally regarded as a feature of the new system while its adoption was pending.^^

Ill

In short, we are driven to the conclusion (tliat judicial review was rested by the framers of the Constitution upon certain general principles which in their estimation made specific provision for it unnecessary7\ in the same way as, for example, certain other general principles made unnecessary specific provision for the President's power of removal.^^ What, then, are these general principles? The task of identifying them is, perhaps, at this date not an entirely simple one. For while the ideas that are essential to explaining and sustaining judicial review as a matter of law, which are the ideas we are in quest of, are relatively few, they have to be sifted from a more considerable stock of ideas which contributed to the rise of judicial review, as a matter of fact, or which have since been offered with the aim of curtailing its practical operation. It will be profitable to begin by

* See note at the end of this article, on Judicial Review in the Ratifying Conventions.

'*The parallel is exact. See Annals of Congress, I, cols. 473 ffg. and especially cols. 481-2, criticising some remarks of Professor McLaughlin, made in the course of his recent interesting study of the subject.

At the outset of his essay, writing with Marshall's argument in Marbury v. Madison in mind. Professor McLaughlin states the doctrine of judicial review as follows : "In theory any court may exercise the power of holding acts invalid; in doing so, it assumes no special and peculiar role; for the duty of the court is to declare what the law is, and, on the other hand, not to recognize and apply what is not law.*' Further along, however, he sets himself the task of refuting the idea that the courts claim a superiority over the other departments in relation to the constitution, and we then find him writing thus : "This authority then in part arose . . . from the conviction that the courts were not under the control of a coordinate branch of the government but entirely able to interpret the constitution themselves when acting in their own field." And from this it is quite logically deduced that, "If our constitutional system at the present time includes the principle that the political departments must yield to the decisions of the judiciary on the whole question of constitutionality, such principle is the result of constitutional development, and ... of the acquiescence of the political powers, because of reasons of expediency.'' Yet at the same time it is conceded that the political departments must "accept as final" "the decision of the court in the particular case." Finally, it is urged that, "no one is bound by an vmconstitutional law."^^

^The Courts, the Constitution, and Parties, pp. 6, 51, 55, 56.

In other words, Professor McLaughlin presents the right of interpreting the constitution that is enjoyed by the courts, first, as a judicial power, and therefore one to be exercised by courts as such; secondly, as a departmental or official function, and therefore one to be exercised by all departments of government equally, incltiding the courts; and thirdly, as an individual prerogative, and therefore one belonging to everybody, including judges. In the first place, there is an element of inconsistency among these three theories that should not escape our attention. For if the power of the judiciary to construe the constitution, when acting in its own field, owes anything by way of theoretical justification — which is the point under discussion — ^to its position as an independent branch of the government, why is it necessary to insist on the legal character of the constitution and the duty of courts to interpret the law? Likewise, if the position of the judiciary as an equal and coordinate branch of the government, or of judges as governmental functionaries, is an indispensible foundation of judicial review, why is it necessary to contend that "no one is bound by an unconstitutional act" ?

But a more important criticism is that the two last . theories are either quite unallowable or totally insufficient to explain judicial review. Let us consider, first, the statement that *'no one is bound by an unconstitutional law." This may mean one of two things : either that no one is bound by a law that has been determined by proper authority to be unconstitutional, which leaves open the crucial question as to where this proper authority resides; or, that no one is bound by a law which he thinks is unconstitutional, which is nonsense. It is not open to contradiction that judicial review posits a constitutional system, complete in all points, and furnished with the machinery for determining all questions that arise out of it. But the right of revolution is a right external to any constitution, and therefore to invoke it as a means of settling constitutional questions is to discard the constitution at the outset.^^

And similarly is the doctrine that the power to construe the constitution is a departmental function allowable or unallowable according as one understands it. If what is meant by it is that all functionaries of government have to interpret the constitution prelimi-

Vatters Apothegm that the legislature cannot "change the constitution without destroying the foundation of its authority" was. a commonplace in Massachusetts before the Revolution: see the Massachusetts Circular Letter of 1768 in MacDonald, Documentary Source Book, 146-50. For interesting statements basing judicial review on the right of revolution, see Elliot, II, 100-06 (Parsons in the Massachusetts convention), and IV, 93-4 (Steele in the North Carolina convention) ; also note 58, below. In confirmation of the view set forth in the text, that judicial review is not a revolutionary function, are the following words by Curtis, Const'l Hist. II, 13 (Ed. of 1890) : "The government of the U. S. has no prerogative which entitles it to be exempt from revolution, when the people choose to resort to that desperate remedy. It must defend its rightful existence and authority by the means with which the Constitution has clothed it. But the right to resort to revolution against intolerable oppression is governed by no law. The right to find relief against an act of Congress which transcends its constitutional powers springs from and is regulated by the Constitution itself. It is a right that can be exercised only by resorting to a judicial remedy."

nary to performing their supposed duties under it, in the same way that the private citizen has to interpret the ordinary law whenever he performs an act having legal consequences — why the theory is correct enough, but perhaps hardly necessary. On the other hand, if what is meant is that the three departments have an equal right, when acting within their respective spheres, to determine the validity of their own acts, then it is untrue.

But the second meaning is in fact, as we shall see later, the meaning which was attached to the doctrine by those who brought it forth, not to support judicial review but to arrest it. And this is still its meaning in the classic statement of it in President Jackson's famous Veto Message of July 10, 1832. Said the President on that occasion:

"The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. . . . The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges; and, on that point, the President is independent of both."3*

The day following the appearance of the message, Webster replied to it, on the floor of the Senate, in the following terms :

"The President is as much bound by the law as any private citizen. . . . He may refuse to obey the law and so may any private citizen, but both do it at their own peril and neither can settle the question of its validity.

•*J. D. Richardson, Messages and Papers of the Presidents, II, 582.

The President may say 2l law is unconstitutional, but he is not the judge. ... If it were otherwise, there would be not government of laws, but we should all live under the government, the rule, the caprices of individuals; . . . The President, if the principle and reasoning of the message be sound, may either execute or not execute the laws of the land, according to his sovereign pleasure. He may refuse to put into execution one law, pronounced valid by all branches of government, and yet execute another which may have been by constitutional authority pronounced void." The message converted "constitutional limitations of power into mere matters of opinion," denied *'first principles," contradicted "truths heretofore received as indisputable," denied ''to the judiciary the interpretation of the law."

And Webster elsewhere inquired, with pertinent reference to a then impending issue: "Does nullification teach anything more revolutionary?"^

But indeed. Professor McLaughlin too urges that the political departments are obliged "to accept as final . . . the decision of the court in the particular case." Yet he also contends that further acquiescence by these departments in the views of the judiciary on constitutional questions is not required by constitutional theory, but must be reckoned as "accommodation" on their part based on reasons of expediency. The significance of this view all hinges on the meaning of the word "decision" in the phrase "decision of the court in the particular case." This may mean

"Speech of July ii, 1832; speech of Oct. 12, 1832, before the Whig convention at Worcester, Mass.: Works, II, 122 (National Ed.). The logical implications of Jackson's doctrine were soon illustrated. At the close of this year the Sup. Ct. rendered its decision in Worcester v. Ga., 6 Pet. 515, which the Pres. refused to enforce, saying : "John Marshall has made his decision, now let him enforce it": Greeley, Am. Conflict, I, 106.

merely the judgment of the court on the question of rights at issue between the parties to the case or it may mean, where the judgment is based on the nuUity of an act of the legislature, the court's determination that the act was null, or, even more broadly, the reasons given by the court for this determination. To discuss the last meaning would take us too far afield, and is unnecessary. For even if we take the second meaning as the correct one, the right of the court to pass finally on the validity of the acts of the legislature as these come before it is admitted, and the doctrine of departmental construction of the constitution is quoad hoc abandoned.

But it may have been Professor McLaughlin's intention to voice acceptance of a theory which has the support of Bancroft, Meigs, and other authorities, and which, stated in its clearest form, runs thus:

"The judicial power extends to the determination of 'cases,* not questions. . . . There is no power in the courts to annul an act of Congress, but only to decide 'cases'. . . . There is no power anywhere to annul an act because deemed unconstitutional. The President may declare that, in his opinion, an act is void because unconstitutional, and refuse to enforce it; and so may the courts; but neither can control the other. . . . The judiciary can no more annul an act of Congress on the ground of its unconstitutionality than Congress can set aside a decree of the courts because without jurisdiction."^®

"•R. G. Street, 6 Reports of Am. Bar Assoc, 184-6. Bancroft's view is to be found on page 350 of volume VI of his History (Last Revision), thus: "The decision of the court in all cases within its jurisdiction is final between the parties to a suit and must be carried into effect by the proper officers; but as an interpretation of the Constitution, it does not bind the

Obviously the question raised by this theory is as to the correctness of the view it states of the scope of judicial duty. The courts, it is said, decide cases, and it is thence concluded that the other departments must support them in the exercise of their constitutional prerogative. This definition of the scope of judicial duty is, however, erroneous. It is not the duty nor yet the power of courts to decide cases, but to decide them in accordance with the law, of which the constitution is part and parcel; and if the other departments are bound by their decisions it is because they are presumed by the constitution itself to be in accordance with the constitution and laws. Otherwise, we should be confronted with the solecism of those sworn to support the constitution obliged by it to promote its violation on occasion. The courts then must ascertain the meaning of the constitution and laws, from which it would seem to follow that those who are bound by the constitution are bound by the judicial view of it in the same general sense as that in which those bound by the ordinary law are bound by the judicial view of it. In neither case does the judicial view attempt to constrain opinion but it does set the standard of acts when these fall within judicial cognizance.

But not only does the theory under discussion land us in paradox, but it is contrary to fact. The fact of the matter is that the courts do annul legislative acts.

President or the Legislature of the United States." This view is stated ex cathedra and without any attempt at argument, and three pages later (p. 353) is substantially contradicted. Mr. Meig's view will be found in 19 Am. Law Rev. 190-203.

in the sense of pronouncing void those which they think to be contrary to the constitution, and the further fact is that they nmst do so if they are not to enforce those acts in particular cases. The matter most sharply and immediately before the court in a case involving the constitutional question is the fact that the constitution endows the legislature with the power to make laws in harmony with it,^^ which means however, not merely the power of putting projects of legislation through the proper parliamentary stages, but also that of vesting them with the force and sanction of law.^'^" Unless, therefore, the court is to assume to deprive the legislature of its right in this respect, it must either always assume the will of the legislature to be accordant with the constitution or it must be able to plead its own constitutional right to pronounce on the validity of the acts of the legislature under the constitution, — and there is no third way about the matter. It is true, of

"' Hence the rule that an act of the legislature must be annulled only when clearly unconstitutional, that is, the court must not run the nisk of violating the Constitution itself, which it would do if it deprived the legislature of power. In this connection, consider the language of C. J. Richardson in Dartmouth College v. Woodzmrd, i N, H. in, 115 (1817) : "If we refuse to execute an act warranted by the constitution, our decision in effect alters that instrument and imposes new restraints upon the legislative power which the people never intended."